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Shelach-Owner rejects a replacement Renter

 

Question

While I have been waiting for my apartment to be completed I have been renting a two bedroom apartment. Recently, our builder notified us that our building received its occupancy permit and in another six weeks we will be able to move in. Since I have another six months remaining on my lease, I searched for a replacement. I found a couple with two children and informed my landlord that we are planning to vacate in two months’ time  and gave him the details of my replacement. When he heard that my replacement ran a play group with seven children aged between one and two, he rejected my replacement. I resumed my search and found a very nice couple with four children aged five to eleven (three are girls) who were interested in renting the apartment. This time he refused claiming that he is not obligated to accept a family larger than mine. Since we only had two children when we moved in (Baruch Hashem a third arrived in the meantime) he claimed that he does not have to accept a replacement with a larger family. Do I have to meet every condition of my landlord or can I just tell him that I found him two suitable replacements and now it is his business: if he wants to rent to them good and if not, not, but I am leaving and have no further obligation to him?

Answer

There are two Gemaras that bear on your question. The first is the Gemara which is the source for your right to break your lease.

The Gemara (BM 79B) discusses a person who hired a boat to transport his wares to a certain place in order to sell them at his destination. However, he managed to sell all his wares before reaching the final destination, obviating his need to continue. The Gemara rules that if others are available to hire the boat, the first customer may terminate his rental and pay only for the cost to transport his wares to that point. This teaches us the basic principle that one has the right to terminate a rental agreement prematurely if the owner does not suffer a monetary loss thereby.

There is another Gemara (BB 59B-60A) that discusses the right to bring additional users to a property. The Mishna, as understood by the Rambam, rules that one who buys a house that opens onto one courtyard may not open a second door from the house onto a second courtyard. The Gemara explains that the reason for this prohibition is that those who have been using the second courtyard can object on the grounds that opening the door will enable additional people to use their courtyard.

The Rambam (Sechirus 5, 5 cited by CM 154, 2) deduces from this section of Gemara that: a renter has the right to sublet provided that the one to whom he wishes to sublet, does not have a larger family than he has. Most importantly, the SA (CM 316, 2) quotes the Rambam’s ruling verbatim without citing any dissenting opinion even though what the Rambam says is the subject of controversy.

Specifically, there are Rishonim who maintain that one may not sublet, altogether. They argue that the Rambam’s application to house rental of a rule that was given for boat rental is incorrect because there are two differences. Some like the Ritva (BM 79B) argue that in the case of the boat the one who rented to the new renter was the owner of the boat and not the renter. Others, including the Ra’avad (as explained by the Magid Mishna), argue that in the case of the boat the crew of the boat remained with the new renter, ensuring that no harm will befall the boat, whereas when one rents a house the owner will not be present with the new renter. However, the SA follows the Rambam’s ruling without mentioning the dissenting opinion rendering this the authoritative opinion.

The limit that the Rambam places on the size of the new renter’s family is also the subject of controversy. Many, including the Maharam of Rottenberg (res. Prague 680), claim that there is no limit on the size of the new renter’s family. (They understand the Gemoro in BB, that we cited earlier, differently.) It is important to note that the Taz takes the Ramo to task for not dissenting to the SA’s adoption of the Rambam’s position. The Gra (316, 2) also cites the Maharam’s dissenting opinion on this issue.

Thus, we have established that, based on the Rambam and SA which are authoritative here, you have the right to sublet the rental. Whether the size of the new renter’s family is limited, is subject to dispute.

The second right that you have – and that is what you have been trying to do – is to suggest new renters to your landlord. As we mentioned, the source for this right is the case of the boat. There are two important features about that case to note. The first is that in that case the Gemara did not make it incumbent upon the renter to find a new customer. All that was required was that there are others who are available. The second important feature is that the Gemara places no restriction on the customers who qualify as replacements.

Based on the first feature, there are Poskim (see Mordechai BB 529 and Nesivos (316, 2)) who maintain that it is not the tenant’s responsibility to find a new renter. As long as other renters are available, the renter may vacate. This assumes that there is no explicit provision in the rental agreement requiring the tenant to find a new renter. (Of course he has to give sufficient time to find a new tenant.) Others, including the Chazon Ish (BK 23) maintain that it is the tenant’s responsibility and they differentiate between property rental and boat rental (since when one rents a boat he hires the crew as well).

The second issue is whether there are any restrictions on the nature of the prospective renters. The Beis Yosef (312), when discussing a tenant who wishes to leave prematurely, deduces from the case of the boat rental that the tenant is permitted to vacate prematurely provided that alternate renters are available. He says that our only consideration is that the owner should not suffer a monetary loss as a result of his tenant’s departure. Therefore, he stipulates that the alternate renter cannot be a person who is grossly unsuitable, due to our concern for the owner’s potential monetary loss. The decision of the Beis Yosef is ruled by the Ramo (312, 7). We should note that there is no mention of any restriction on the size of the new renter’s family.

There is an important responsa of the Rashbo (3, 36) that sheds light on the issue of the nature of the qualifications needed to qualify as an alternate renter. He says that there is no iron-clad rule that the new family may not be larger than the original family. The key factor is whether it is likely that the changeover will harm the owner. We have just seen that this was also the approach of the Beis Yosef that is ruled by the Ramo.

We have established that you are certainly allowed to break your lease if you find a suitable replacement. We have further established that the only criteria for a suitable replacement is someone who does not pose a reasonable threat that he will cause the landlord a monetary loss. From your description of your prospective replacements it seems that they are suitable replacements, and your landlord is abusing his right to object to replacements by strictly interpreting the rules in a manner that they were never intended.

There is a second, slightly different, reason, to accept your replacements even if they are not totally similar, according to the Shulchan Aruch. The reason is that that conditions nowadays are different from what they were in earlier generations. When people rent apartments, nowadays, most often landlords are unaware of the size of the tenant’s family and they do not inquire about it either. Similarly, they do not ask whether the tenant’s wife runs a playgroup, and they do not stipulate in the rental agreement any conditions on family size or occupation. If no conditions were stipulated, even if the landlord eventually discovers that his tenant has eight young children, he has no right to evict his tenant.

Therefore, if your landlord did not inquire about your family size or your wife’s occupation prior to renting to you, as far as your landlord is concerned, you could have had as many children as your prospective replacement and your wife could have run a playgroup for two year olds. If this is the case, even though in actuality you do not have a larger family and your wife does not run a playgroup, since your landlord could not have objected if you had a larger family or that your wife runs a playgroup, he cannot disqualify a replacement on these grounds. The reason is because your replacement does not have to be more qualified than you had to be. This would constitute a second reason to disqualify your landlord’s objections.

In conclusion: If there is no reason to believe that the prospective tenants that you suggested to your landlord pose a greater monetary threat to your landlord than you did, you can vacate without fearing that you will need to continue paying rent for the apartment that you vacated prematurely. It is advisable that you have proof that you made these offers so that your landlord will not be able to deny the facts if you eventually go to a din Torah.

 

 

 

 

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